Don’t Let Unethical Lawyers Off the Hook

Federal Emergency Management Agency (FEMA) Director R. David Paulison needs to pursue disciplinary charges against the attorneys who advised the agency to ignore its responsibility to take care of people displaced by Hurricane Katrina.

Last week, we reported on the revelations that FEMA attorneys advised the agency not to test for the presence of formaldehyde in FEMA-provided trailers, fearing that the agency would be legally liable if any of the thousands of people displaced by Hurricane Katrina who lived in the trailers became sick as a result of the toxic exposure. FEMA followed the advice: the agency stopped testing the trailers after some tests found high formaldehyde levels.

Missing from our discussion, as well as from most press coverage of the House Oversight and Government Reform Committee hearing where these revelations surfaced, was any discussion of the ethical responsibilities of these FEMA attorneys.

Bob Egelko reports in the San Francisco Chronicle that these attorneys may have crossed the line and committed ethical violations.

“The first thing lawyers should do is keep their clients out of trouble,” said Ronald Rotunda, a law professor at George Mason University in Virginia who has written widely on legal ethics. FEMA is “in trouble now, and people may be hurt.”

When it comes to testing property for hazards, Rotunda said, a lawyer’s duty is to advise the client to do whatever is necessary to find out what problems exist and repair them.

“Willful blindness is something that good lawyers know is unethical and bad lawyering,” he said. State bar associations can discipline, suspend or disbar lawyers who engage in it.

Another ethics expert, Monroe Freedman, law professor at Hofstra University in New York, went further.

If news accounts of the hearing are accurate, “these lawyers should be disbarred for incompetence,” he said. “They should also be held liable civilly for complicity in whatever harm was suffered by the residents of the trailers after their knowledge of the severe health risks.”

Even if the lawyers were right in advising FEMA that the results of formaldehyde testing could expose the agency to legal liability, Freedman said, they apparently ignored the possibility that the liability would be much greater if the agency chose not to investigate after it learned of possible health dangers.

(snip)

The American Bar Association’s rules of conduct say lawyers sometimes must give their clients unwelcome advice. “Purely technical legal advice … can sometimes be inadequate,” the organization says, and a lawyer may weigh “moral and ethical considerations” in counseling a client.

San Francisco attorney Richard Zitrin, a former State Bar ethics committee chairman, said a government lawyer’s ethical duty depends largely on the agency’s regulatory responsibilities.

“If the charge of FEMA includes protecting the public, then it’s ethically questionable (for a lawyer) to have the agency act in a way that intentionally buries its head in the sand,” Zitrin said.

But theories of public responsibility aren’t always carried out in practice, Zitrin said. He observed that lawyers who help corporate clients — tobacco companies, for example — and hide hazards from the public are rarely, if ever, punished by state bar associations.

It is high time to change this. The next time FEMA Director Paulison appears in public, I hope reporters ask him if he planned to bring disciplinary charges against the attorneys who advised the agency to ignore its responsibility to take care of people displaced by Katrina.